A bill introduced in the Idaho House would create a mechanism to review federal laws and end state cooperation with enforcement of those determined to violate the U.S. Constitution. This process would set the stage to effectively block some federal laws and acts.
The House State Affairs Committee introduced House Bill 169 (HB159) on Feb. 15. The proposal would set up a committee consisting of eight members, four from each chamber, appointed by the Senate President and Speaker of the House. The members would be selected “based on knowledge of and experience with the United States and Idaho Constitutions.”
The committee would be twice a year and review federal laws, acts and regulations that impact “the sovereignty of Idaho” and determine whether they “violate the principles of federalism.” The committee would then make recommendations to the legislature. The committee would become defunct after July 2021.
Passage of HB169 would create a platform for nullifying unconstitutional federal actions in effect in Idaho. Once identified, the legislature could then take further action and refuse to enforce or implement federal acts not authorized by the Constitution.
Based on James Madison’s advice for states and individuals in Federalist #46, a “refusal to cooperate with officers of the Union” provides an extremely effective method to render federal laws, effectively unenforceable because most enforcement actions rely on help, support and leadership from the states. This legislation sets the stage to end enforcement of any federal laws deemed to violate the Constitution.
Fox News senior judicial analyst Judge Andrew Napolitano agreed this type of approach would be extremely effective. In a televised discussion on federal gun laws, he noted that a single state refusing to cooperate with enforcement would make federal gun laws “nearly impossible” to enforce.
The federal government relies heavily on state cooperation to implement and enforce almost all of its laws, regulations and acts. By simply withdrawing this necessary cooperation, states can nullify in effect many federal actions. As noted by the National Governor’s Association during the partial government shutdown of 2013, “states are partners with the federal government on most federal programs.”
Nobody disputes a state’s authority to evaluate the constitutionality of a federal act. There is also a longstanding legal principle affirming that states can refuse to provide personnel or resources for federal purposes. Simply put, the federal government cannot force states to help implement or enforce any federal act or program. The anti-commandeering doctrine is based primarily on five Supreme Court cases dating back to 1842. Printz v. U.S. serves as the cornerstone.
“We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the States’ officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policy making is involved, and no case by case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty.”
HB169 has been referred to the House State Affairs Committee, where it will need to pass by a majority vote before moving on the legislative process.